The Big Picture and the Closeup

Unmitigated majority rule is only a great thing if you do not happen to be in a minority: if you do not happen to be a gay person who wishes to marry, a wish the Supreme Court granted over Cruz’s strenuous opposition, or a black who wants to vote in southern states affected by the Voting Rights Act, legislation Cruz is on record as opposing, or a woman threatened by domestic violence who wants the protections of the Violence Against Women Act, whose renewal Cruz voted against. As Obergefell demonstrated, we need a branch of government that is not politically accountable; it is needed precisely to protect us from the anti-minority policies Ted Cruz’s ilk always seem to push.

I rejoiced in the result of the Supreme Court’s recent Obergefell decision, establishing same-sex marriage as a constitutionally-protected right. Yet I realized as soon as I heard of that result that there was a paradox in the ruling. No one is going to argue with a point the dissents all make: that same-sex marriage is a novelty both in human civilization and in American law. And the Constitution is very old. How, then, the dissenters have asked, is something so new rooted in something so old?

The bulk of Magna Carta deals with concerns of great interest in 1215 but neither very interesting nor very comprehensible eight centuries later: fine adjustments to the relationships among the free peasants, the gentry, the nobility, the Church, and the King; struggles between river fishermen and cities that depended on navigation for trade; debts owed Jewish moneylenders; national relations between England and its semi-vassal lands Wales and Scotland. Even the vocabulary is strange: scutage, and novel disseisin, and wapentake. And most of it you don’t need to know now; time has washed most context away. What remain today are only the most important things: the rule of law and due process, and their inevitable concomitant we now call separation of powers.

The riots were like a bunch of Rohrschach ink blots, in which you could see almost anything, and almost any side of any issue. We’ll have to work with our confusion for awhile. But after that work we have a responsibility to reach conclusions and take action. Changes must be made.

I do not suggest it is ever a facile choice to make, deciding between one’s ideals and one’s nation. Even when a nation has behaved very badly, that nation may still possess such great value as the guarantor of things we cherish that we may find it is worthy of our loyalty notwithstanding. But the causes that the old American Bolsheviks stood for (succor for the destitute, redress to racial inequality, the struggle against fascism) might legitimately weigh heavier in the balance of a fair-minded person.

Sorry, but, where, as is likely with rape allegations, the only evidence is “he said/she said” and hence is in close to equipoise, a mere preponderance standard cannot be enough fairly to adjudicate what are close to criminal accusations. The consequences for the respondent are just too serious, however serious the alleged misdeed.

The legal question whether search engine links should be taken down under the European “right to be forgotten” should be determined by considerations of privacy, not considerations of “relevance” or “excess.”

But call it disrespect if you want to. That does not solve the problem. Does that policeman really think that de Blasio’s warning words to his mixed-race son about being stopped by the police were without foundation? In 2013, the Department’s overwhelmingly imbalanced use of stop-and-frisk against people of color had been found after an exhaustive trial in the Southern District of New York to be a simple and undeniable fact, based on the most objective of evidence: the forms the police had to fill out every time these encounters occurred. Only 10% of all stops over a decade were of white people.

The biggest problem often is that “peoples” are theoretically guaranteed the right to divorce, but territory isn’t. Yet necessarily and thus inevitably, separating “peoples” wants to break off chunks of territory with them. And the United Nations Charter which guarantees the right to secede says nothing about how maps are redrawn. So what becomes of the map when one “people” decides to withdraw?

What the Civil War really proved was that no one would allow secession to happen, right or wrong. But might is a very unsatisfactory way of making (or unmaking) right, and no real reply to the reasoning of the Declaration of Independence. The Declaration says that governments derive their just powers from the consent of the governed, something almost everyone in the West would agree with. This seems to be the quintessential human political right. Secession is simply a withdrawal of that consent by a large group of the governed all at once.